The law of consent

Alex Magaisa Legal Analyst IN UNDERSTANDING the law of consent, we have to look at the law with a critical eye and expose its weaknesses. A superficial look at the law might indicate that the age of consent in Zimbabwe is 16, because that is the definition of a young person under the Criminal Law Codification Act, but a critical analysis demonstrates that in fact, for purposes of rape, the age of consent is effectively 12 years old.

Girls Under 12: Rape

The law, as I understand it in section 64 and 70 of the Criminal Law (Codification and Reform) Act, Chapter 9:23, is that the age of consent for girls for purposes of rape is 12-years-old. This means a child who is under 12-years-old is, at law, totally incapable of consenting to sex.

In essence, there is an irrefutable presumption that a girl under 12 is incapable of consenting to sex. A person who has sex with a girl under 12 will be charged with rape and cannot use the defence that the child consented to sex because the law classifies such a girl as someone who is completely incapable of consenting to sex.

The sentence for rape is stiff, it being imprisonment for life or a shorter period. There is no option of a fine.

Girls between 12 and 14:

Rape but possibly lesser crime

If a person has sex with a girl who is above 12 but under the age of 14, the person will be charged with rape unless he can demonstrate that the girl was capable of giving consent and did give consent to sex on that occasion. This means an accused person can escape the charge of rape by showing that the girl was capable of giving consent and did actually give consent.

However, if the person is not charged with rape, he would still be guilty under s. 70(1) of performing sexual intercourse or an indecent act with a young person. S. 70(2) makes it clear that consent is not a valid defence to the charge of sexual intercourse or indecent act with a young person. The law does not say the girl below 16 (but above 12) cannot consent to sex – it simply says such consent is not a defence to the charge of sexual intercourse or indecent act.

The sentence this offence attracts is lower than for rape, it being a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.

Points to note:

What all this amounts to is that while it is often said the age of consent in Zimbabwe is 16 years, it is on analysis, effectively 12 years for girls. The law says a young person is under 16 but it’s only girls under 12 who are protected by the irrefutable presumption that they are incapable of consenting to sex.

This is too low and exposes young girls to abuse. The average age of consent in most other countries is 16.

A man who has sex with a 12-year-old girl may be able to escape the charge of rape if he can show that the girl was capable of giving consent and that she gave consent. He will only be charged with a lesser offence of performing sexual intercourse or an indecent act on a young person.

This attracts a lesser sentence compared to rape which attracts a term of up to life imprisonment. This would not happen if all girls under 16 enjoyed the irrefutable presumption that they are incapable of consenting to sex.

The law does not provide sufficient protection for young girls, but worse, the attitude of the judges and magistrates to sexual offences leaves a lot to be desired. A reading of some of the judgments and decisions of magistrates demonstrates very conservative views which are influenced by patriarchy which remains dominant in our society.

In some cases, children who have been abused are encouraged to marry their abusers, while in other cases, the matter is settled between the girl’s male relatives and her abuser. The sentences are generally lenient and some of the reasoning shows that girls have an uphill struggle to convince police, prosecution and judicial authorities in cases of sexual offences.

It is not surprising that most cases of rape go unreported. Or if they are, they are often settled between families. This is a moral hazard as it only serves to encourage offenders.

There is need to raise the age of consent for purposes of rape to at least 16. Here is a selection of the age of consent in other countries: South Africa (16), Namibia (16), Botswana (16), UK (16), Canada (16), Ireland (17), Romania (18), Sweden (15), Germany (14) and Italy (14).

While Zimbabwe’s age of consent is often reflected as 16, this is not an accurate reflection since it is only where a girl is under 12 that there is an irrefutable presumption that they cannot consent to sex. In all cases above that, consent if proven vitiates the charge of rape and only exposes the offender to a lower and less tough charge.

But more important is a mental revolution in regard to society’s attitudes to women and girls to the seriousness of rape and sexual offences against women and girls. This mental revolution must sweep through the corridors of the justice system, right from the police outposts in Madlambudzi through to the magistrates courts at Rotten Row and the superior courts along Samora Machel Avenue and down to Nelson Mandela Avenue where the Houses of Parliament sit. The law is a bit of jungle but it is the attitudes that must be overcome.